230 F.3d 543 (2nd Cir.

2000)

ZONELL WRIGHT, SIMON VARGAS, TARA DIXON,

MARIO LAMBOY, and ROBERT THOMPSON, on behalf of
themselves and all others similarly situated, PlaintiffsAppellants,
v.
RUDOLPH GIULIANI, as Mayor of the City of New York,
JASON TURNER, as Commissioner of the Human Resources
Administration of the City of New York, Department of Social
Services, and GREGORY CALDWELL, as Deputy
Commissioner of AIDS Services Income Support of the City of
New York, Defendants-Appellees.
Docket No. 00-7853
No. 823--August Term, 2000

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT
Argued: September 26, 2000
Decided: October 25, 2000

Appeal from a judgment of the United States District Court for the
Southern District of New York, William H. Pauley, Judge, denying, inter
alia, plaintiffs' motion for a preliminary injunction.
Affirmed.
ARMEN H. MERJIAN, New York, N.Y. (Russell E. Brooks, on the
brief), for Plaintiffs-Appellants.
MARTA ROSS, New York, N.Y. (Edward F.X. Hart and Georgia
Pestana, on the brief), for Defendants-Appellees.
Before: CARDAMONE, McLAUGHLIN and JACOBS, Circuit Judges.
PER CURIAM:

Plaintiffs, five homeless individuals who have been diagnosed with clinical
symptomatic Human Immunodeficiency Virus ("HIV") or Advanced Immune
Deficiency Syndrome ("AIDS"), brought suit on behalf of themselves and a
putative class alleging that various officials of the City of New York have
failed to provide them with emergency housing that accommodates their
disability, as required by Section 504 of the Rehabilitation Act of 1973, 29
U.S.C. 794 (the "Rehabilitation Act") and Title II of the Americans with
Disabilities Act, 42 U.S.C. 12131 (the "ADA"). On expedited appeal, they
challenge the portion of a memorandum and order entered June 14, 2000 in the
United States District Court for the Southern District of New York (Pauley, J.)
denying their request for preliminary injunctive relief. We affirm for the
reasons set forth below.

BACKGROUND
2

Plaintiffs challenge the adequacy of emergency housing administered by the

New York City Human Resources Administration ("HRA") Division of AIDS
Services Income Support ("DASIS"). Plaintiffs are all eligible for emergency
housing provided by DASIS, and have resided in such housing; but they claim
that their precarious health is endangered by living there, and that therefore
they have been denied meaningful access to emergency shelter in violation of
the Rehabilitation Act and the ADA.

The undisputed facts of the case and the parties' allegations have been
admirably summarized by the district court, and need no reformulation:
AIDS/HIV

HIV, the virus that causes AIDS, attacks the immune system and leaves the
body unable to ward off infection and disease. People with HIV develop
numerous illnesses and physical conditions not found in the general population
and experience manifestations of common illnesses that are much more
aggressive, recurrent, and difficult to treat. Infections and cancers spread more
rapidly in a person whose immune system is compromised, and the
effectiveness of medicine is reduced by nutritional problems that limit the
body's ability to absorb what is ingested.

The opportunistic infections and chronic conditions that result from a weakened
immune system limit the HIV-infected person's ability to engage in many
common activities of daily living, such as standing and walking. Individuals
with HIV or AIDS have difficulties obtaining adequate nutrition. Illness and
infection often limit appetite and the body's ability to absorb nutrients.
Common HIV-related conditions such as nausea and oral thrush can limit an

individual's ability to swallow and eat properly. Due to HIV-related diseases,

many HIV-infected people have dietary restrictions.
6

Many of the drugs regularly prescribed to combat HIV, AIDS and related
conditions have side effects that also cause functional limitations. Some of
these side effects include anemia, severe nausea, diarrhea, abdominal pain,
pancreatitis and muscle wasting. An individual taking these medications will
likely be restricted in his ability to walk, stand, or travel. Many of the drugs
must be taken several times a day, some on an empty stomach and some with
food. Apart from this daily regimen, the medications frequently require
refrigeration.

DASIS
7

In 1985, New York City ("the City") established DASIS to assist individuals
with advanced HIV-related disease or AIDS to access public benefits and
services provided by HRA. On June 25, 1997, the New York City Council
codified the existence of DASIS and delineated certain benefits and services for
indigent New Yorkers with clinical/symptomatic HIV illness and AIDS. See
N.Y. City Admin. Code 21-126 to 21-128 (1997) (the "DASIS Law"). One
of the benefits provided by the DASIS Law is "medically appropriate
transitional and permanent housing" to "every eligible person with
clinical/symptomatic HIV illness or with AIDS who requests assistance."
DASIS Law 21-128(b).

Homeless, single adult City residents who do not qualify for DASIS benefits
are housed in congregate shelters, while DASIS clients are placed in either
transitional supported housing or commercial single room occupancy hotels
("SROs"). Since transitional supported housing offers more structure and
services, DASIS initially attempts to place its clients there. If transitional
supported housing is unavailable, then DASIS clients are placed in an SRO run
by the Department of Homeless Services' Emergency Assistance Unit ("EAU").

Under the DASIS Law, emergency housing provided to DASIS clients must be
"suitable for persons with severely compromised immune systems" and "shall
include, but not be limited to, individual refrigerated food and medicine storage
and adequate bathroom facilities which shall, at a minimum, provide an
effective locking mechanism and any other such measures as are necessary to
ensure privacy." DASIS Law 21-128(a)(4).

10

Plaintiffs claim that the SROs fail to meet DASIS Law standards and are

uninhabitable. For example, plaintiff Zonell Wright was housed in the 12

Towns YMCA SRO in Brooklyn, New York. Although Wright had been
prescribed AIDS medication that had to be taken with food, he did not have a
refrigerator in his room. As a consequence, Wright paid a friend to store food in
his refrigerator and to cook it in his kitchen. When Wright was transferred to
emergency housing in Manhattan, he asked his doctor to prescribe him a
medication that did not need to be taken with food because he could not store
food in his room.
11

Two months later, DASIS placed Wright in the Allerton Hotel (the "Allerton"),
an EAU SRO. Wright describes the Allerton as a rodent and cockroach-infested
abode with no ventilation and a filthy bed. Once again, there was no
refrigerator in the room. Wright's bathroom served sixteen rooms, some with
more than one resident. It, too, was filthy.

12

After seven days in the Allerton, Wright was transferred to a YMCA, where he
currently resides. The YMCA does not permit residents to have refrigerators.
Like the other two SROs in which Wright was housed, the YMCA is dirty and
rodent infested. He shares a bathroom with forty other people that is cleaned
once a day and lacks basic amenities, including toilet seat covers and soap.

13

The other named plaintiffs in this action describe similar living conditions at
their SROs. In addition, plaintiff Simon Vargas describes how one unnamed
DASIS client with prosthetic legs was forced to walk up five flights of stairs to
his room because the SRO did not have an elevator. In contrast to Wright, the
other plaintiffs stayed in the emergency housing to which they were assigned.

14

Wright et al. v. Giuliani, No. 99 Civ. 10091, 2000 WL 777940, at *1-*3

(S.D.N.Y. June 14, 2000).

15

Plaintiffs commenced this action on September 29, 1999, seeking, in relevant

part, a preliminary injunction compelling defendants: (i) to ensure that each
DASIS client is provided with a functioning refrigerator, an individual locking
mechanism on the bathroom, a clean mattress in good repair, clean linens in
good repair at least weekly, a sufficient supply of toilet paper, a bathroom
cleaned at least twice a day, and permission to store and consume food and
drink in their rooms; (ii) to maintain security to prohibit illegal activities in the
common areas of emergency housing; and (iii) to design and implement
sensitivity training for all personnel working in the emergency housing.

16

The district court denied plaintiffs' request for preliminary injunctive relief.

The court began its discussion by reciting the rigorous standard that plaintiffs
must satisfy for a preliminary injunction in this case: a "clear" or "substantial"
likelihood of success on the merits.
17

The court ruled that plaintiffs could not establish a likelihood of success on the
basis of what it found to be an incomplete record. The court determined that it
could not decide whether the emergency housing that DASIS clients receive is
"adequate" without comparing it to the quality of the emergency housing the
City provides to the able-bodied, a comparison that plaintiffs argue is
irrelevant.

18

The district court construed Circuit precedent to require that in any

Rehabilitation Act or ADA analysis, "courts must focus on the specific services
provided to the able-bodied and compare them to the services provided to the
disabled." The court emphasized that the Rehabilitation Act and the ADA
guarantee no specific benefits; they require only that "the particular benefits
provided to the able-bodied be meaningfully accessible to the disabled," and
therefore, "the relevant question is not the amorphous concept of emergency
housing, but whether plaintiffs have access to the particular emergency housing
granted to able-bodied, homeless New York City residents." The court
concluded that on the present state of the record, plaintiffs could not
demonstrate that they lacked "meaningful access" to emergency housing.

19

On September 19, 2000, Judge Sterling Johnson of the United States District
Court for the Eastern District of New York issued a memorandum and order in
Henrietta D. v. Giuliani, 95 Civ. 0641 (E.D.N.Y. Sept. 19, 2000), a case in
which six homeless individuals with AIDS or HIV brought suit against the City
of New York to challenge various aspects of the DASIS program. Judge
Johnson ruled in favor of the plaintiffs, granting declaratory relief and a
permanent injunction, and ordering a federal magistrate to oversee DASIS for
the next three years to assure compliance with his findings of numerous
violations of the law (including, apparently, ADA and Rehabilitation Act
violations). See generally id. Although the relief granted in Henrietta D. may
remedy the conditions complained of here, Judge Johnson's order does not
purport to grant the precise relief sought by the plaintiffs in this case. We
therefore conclude that this appeal is not moot.

DISCUSSION
20

We review the district court's denial of a preliminary injunction for abuse of

discretion, see SG Cowan Securities Corp. v. Messih, No. 00-7601, 224 F.3d
79, 81 (2d Cir. Aug. 18, 2000), and we are "free to affirm an appealed decision

on any ground [that] finds support in the record." Beal v. Stern, 184 F.3d 117,
122 (2d Cir. 1999).
21

Ordinarily, a preliminary injunction may be granted when the party seeking the
injunction establishes that "1) absent injunctive relief, it will suffer irreparable
harm, and 2) either a) that it is likely to succeed on the merits, or b) that there
are sufficiently serious questions going to the merits to make them a fair ground
for litigation, and that the balance of hardships tips decidedly in favor of the
moving party." Otokoyama Co. Ltd. v. Wine of Japan Import, Inc., 175 F.3d
266, 270 (2d Cir. 1999). But when, as here, the moving party seeks a
preliminary injunction that will affect "government action taken in the public
interest pursuant to a statutory or regulatory scheme, the injunction should be
granted only if the moving party meets the more rigorous likelihood-of-success
standard." Beal, 184 F.3d at 122 (internal quotations omitted). And, when the
injunction sought "will alter rather than maintain the status quo" the movant
must show "clear" or "substantial" likelihood of success. Rodriquez v.
Debuono, 175 F.3d 227, 233 (2d Cir. 1999) (internal citations and quotations
omitted).

22

In this case, there is an insufficient record for us to conclude that the district
court abused its discretion by denying plaintiffs' request for preliminary
injunctive relief. Conceptually, the issue on this appeal appears to be whether
the DASIS program, if administered in accordance with the relief plaintiffs
seek, is to be viewed (i) as a "reasonable accommodation" to afford the
plaintiffs "meaningful access" to the City's emergency housing program, or (ii)
as a separate program conceived and implemented to provide additional
substantive benefits to certain disabled persons such as the plaintiffs.

23

This distinction--between affording (i) "meaningful access" through

"reasonable accommodation" and (ii) "additional substantive benefits"--is
crucial to the merits of this case under Supreme Court and Second Circuit
authority. In Alexander v. Choate, 469 U.S. 287 (1985), the Supreme Court
considered whether the Rehabilitation Act was violated by Tennessee's
proposed reduction in the number of inpatient hospital days per year for which
state Medicaid would reimburse hospitals on behalf of each recipient. The
plaintiffs in that case argued that the reduction was discriminatory because it
would have a disproportionate effect on disabled, lower-income Medicaid
recipients, such as themselves.

24

The Supreme Court disagreed. The Court noted first that in a previous decision
it had:

25

[S]truck a balance between the statutory rights of the handicapped to be

integrated into society and the legitimate interests of federal grantees in
preserving the integrity of their programs: while a grantee need not be required
to make "fundamental" or "substantial" modifications to accommodate the
handicapped, it may be required to make "reasonable ones."

26

Id. at 300 (citing Community College v. Davis, 442 U.S. 397, 412-13 (1979)).
Applying this distinction, the Court rejected plaintiffs' argument that the
Rehabilitation Act guarantees the handicapped "equal results" from government
initiatives:

27

To the extent [plaintiffs] further suggest that their greater need for prolonged
inpatient care means that, to provide meaningful access to Medicaid services,
Tennessee must single out the handicapped for more than 14 days of coverage,
that suggestion is simply unsound. At base, such a suggestion must rest on the
notion that the benefit provided through state Medicaid programs is the
amorphous objective of "adequate health care."

28

Id. at 302-03 (emphasis added).

29

In a string of recent decisions brought under the disabilities statutes at issue

here, this Circuit has also distinguished between (i) making reasonable
accommodations to assure access to an existing program and (ii) providing
additional or different substantive benefits. See, e.g., Rodriquez v. City of New
York, 197 F.3d 611, 618 (2d Cir. 1999) (rejecting ADA challenge based on
New York City's failure to provide safety monitoring devices to a subset of
individuals with disabilities because "[t]he ADA requires only that a particular
service provided to some not be denied to disabled people"); Doe v. Pfrommer,
148 F.3d 73, 83 (2d Cir. 1998) (rejecting Rehabilitation Act claim by disabled
individual who sought, inter alia, a "job coach," because "what [plaintiff] seeks
to challenge is not illegal discrimination against the disabled, but the substance
of the services provided to him"); Lincoln CERCPAC v. Health and Hospitals
Corp., 147 F.3d 165, 168 (2d Cir. 1998) (affirming dismissal of Rehabilitation
Act and ADA claims brought by disabled children who were transferred from
one rehabilitation center to another with fewer services because "the disabilities
statutes do not guarantee any particular level of medical care for disabled
persons, nor [do they] assure maintenance of service previously provided").
The thrust of these cases is that the disabilities statutes do not require that
substantively different services be provided to the disabled, no matter how great
their need for the services may be. They require only that covered entities make
"reasonable accommodations" to enable "meaningful access" to such services as

may be provided, whether such services are adequate or not.

30

Plaintiffs argue that the Rodriquez line of cases is inapposite because in this
case they seek only meaningful access to a benefit that is already provided to
the non-disabled, and that plaintiffs characterize as "emergency housing." They
may be right, and the district court did not conclusively rule otherwise. But the
present record evidently did not afford the district court enough information to
determine that there was "clear" or "substantial" evidence that the remedial
measures plaintiffs sought were "reasonable accommodations" rather than
additional, substantive benefits. We see no error in that ruling.

31

Conceivably, a more complete record will assist the district court in classifying
and evaluating plaintiffs' claims, and in making findings that decide the open
questions. In Alexander, the Supreme Court held that "adequate health care"
was too "amorphous" a concept to define the government service or benefit to
which disabled persons may assert a statutory right of access and
accommodation. Alexander, 469 U.S. at 303. Evidence concerning the
condition of congregate housing for the able-bodied may assist the court to
determine whether the concept of "adequate emergency housing" is amorphous
in the sense that "adequate health care" was held to be amorphous in
Alexander.1 Alexander, 469 U.S. at 303.

32

Plaintiffs also argue that the district court's ruling is fundamentally flawed
because it impliedly holds that a claim under the disabilities statutes cannot
prevail without a showing of "disparate treatment" between the disabled and the
non-disabled. The district court concluded that the record should be
supplemented with "information about the City's emergency housing for ablebodied homeless residents" in order to ascertain what specific services the City
provides to its homeless residents. Such supplementation of the record would
assist a disparate treatment analysis, but we need not decide whether that
analysis is helpful, because the same supplementation of the record may cast
light on whether the remedial relief plaintiffs seek would effect a
"fundamental" or "substantial" change in the DASIS program, a question that
bears upon the merits.2

CONCLUSION
33

The district court did not abuse its discretion in denying plaintiffs' motion for a
preliminary injunction. The district court's order is affirmed.

NOTES:

NOTES:
1

There can be no suggestion that the district court has predetermined plaintiffs'
merits case: It rejected defendants' argument that plaintiffs failed to state a
claim under the disabilities statutes because they seek only "new benefits" by
"declin[ing] to read [plaintiffs'] complaint so narrowly."
Counsel for the City of New York stated during oral argument in this Court that
discovery is ongoing in the district court, and that the City's response to
plaintiffs' first request for documents and interrogatories was due on October
13, 2000.